York Region Board of Education v. York Region Women Teachers' Association, 1993 CanLII 5417

0385-92 York Region Board of Education, Applicant v. York Region Women Teachers' Association; Ontario Public School Teachers' Federation, York Region District; and Group of Employees,

Respondents 0442-93 Group of Employees, Applicants v. York Region Board of Education; York Region Women Teachers' Association; and Ontario Public School Teachers' Federation, York Region District,

Respondents 0450-93 York Region WomenTeachers' Association and Ontario Public School Teachers' Federation, York Region District, Applicants v. York Region Board of Education, Respondent

Appearances: ElizabethShilton, Victoria Reaume,BevSaskoley, KarenFalk,Regine Baker, Pat Clarke and Fred MayorforYork RegionWomenTeachers'Associationand the Ontario Public SchoolTeachers' Federation,YorkRegionDistrict;RoyFilion, ColetteNemniand Marketta JokinenforYorkRegionBoard of Education; George Vassos, Madeleine Thibault-Smith, Kay Valentine and Judy Hodgkinson for the Group of Employees

Before : Mary Anne McKellar, Vice-Chair; Charles Taccone and Geri Sheedy, Members

Cite As: York Region Board of Education (Teachers) (1993), 4 P.E.R. 51

Practice and Procedure - Standing

The Tribunalruledthatindividualteachers represented by abargainingagent did nothave standingtobring acomplaint tothe Tribunalas theydid nothave anystatutorilyrecognised role in the preparationofthe pay equityplanoradirectlegalinterestinproceedings. In this case, while the outcome of the Application might disrupt the existing wage grid -a result contemplated by the legislation - it could not reduce the compensation paid to these employees or otherwise adversely affect the terms and conditions of their employment.

Practice and Procedure - Intervenor

The Tribunal refused to grant intervenor status to individualemployeesonthe basis that they were unable to offer the Tribunal a distinct or expert point of view on the issues in dispute. Nor did they express a general public interest unrepresented by the existing parties to the Application.

Pratique et procédure - Qualité

Le Tribunal a statué que les enseignants et enseignantes représentés par un agent négociateur n'avaient pas la qualité pour déposer, en leur nom personnel, une plainte devant le Tribunal, car la Loi ne leur reconnaissait aucun rôle dans le processus d'élaboration du plan d'équité salariale, ni aucun intérêt direct en droit dans les procédures. Dans la présente affaire, même si l'issue de la requête peut influer sur la grille de rétribution actuelle - répercussion que prévoit la Loi d'ailleurs, elle né peut entraîner une réduction de la rétribution accordée à ces employés, ni porter atteinte d'une autre façon à leurs conditions d'emploi.

Pratique et procédure - Qualité d'intervenant

Le Tribunala refuséd'accorder auxemployésetemployées,enleur nompersonnel, laqualitéd'intervenant parce qu'ils ne pouvaient pas donnerauTribunalunpoint devue distinctou d'expert sur les pointsenlitige. De plus, ils ne représentaient pas un point de vue de l'intérêt public que les parties à la requête ne représentaient pas.

DECISION OF THE TRIBUNAL, SEPTEMBER 30, 1993

A. The Decision

1. By decision dated September 14, 1993, we dismissed the Application in File 0442-93; struck the Response that the Group of Employees comprising the individuals listed in Appendix "A" had filed in File 0385-92; and declined to grant intervenorstatus inFile 0385-92 to the individuals listed in Appendix "A". These are our reasons for decision.

B. Files Before Us

2. TribunalFiles0385-92,0442-93and0450-92werelistedtogetherfor hearing. All three files relate to Review Officer Orders issued in connection with the pay equity plan required for elementary school teachers employed by the York CountyBoardofEducation ("the Board"). Here is a brief description of each file:

(1) 0385-92 involvesanApplicationbythe Board in which it objects to a ReviewOfficer order dated October 29, 1992 ("the 1992 Order"). For the purposes of this decision, the most significant aspect of the 1992 Order was its determination that elementary school teachers comprise sevenjob classes. Pursuant to a decision of the Tribunal dated March 1, 1993, the Application in 0385-92 was subsequently augmented to include objections to a Review Officer Order dated April 29, 1993 ("the 1993 Order"), which incorporated the substantive portions of the 1992 Order and went on to order a complete pay equity plan. Responses to the Application in 0385-92 were filed by the York Region Women Teachers'Associationandthe Ontario Public SchoolTeachers'Association, YorkRegion District ("the Branch Affiliates"), and by a group ofindividual elementary school teachers ("the Individual Teachers") employed by the Board.

(2) 0442-93 involvesanApplicationbythe IndividualTeachersinwhichtheyobject tothe 1993 Order. The Board did not file a written Response to the Application in 0442-93, but the Branch Affiliates did. In their Response, the Branch Affiliates argued that the Individual Teachers lacked standing to make the Application.

(3) 0450-93 involves an Application by the Branch Affiliates in which they seek to have theTribunalordertheBoardtocomplywiththe1993Order. The Board filed a Response to the Application in 0450-93. The Individual Teachers did not respond.

1At the hearing on August 24, 1993, the Tribunal dealt with a preliminary issue relating to Files 0385-92 and 0450-93. That issue was whether the Individual Teachers have status to participate in the proceedings relating to the 1992 and 1993 Orders, as either a party, or as a non-party intervenor.

4. At the outset, Mr. Vassos, counsel for the Individual Teachers conceded that because ss.16(4)(1) of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended, provides clearly that only the bargaining agent or the employermaymakeanapplicationto the Tribunalwith respectto aReviewOfficer'sOrder thatorders

apayequityplan,hisclientsdidnothavestandingtomaketheApplicationinFile0442-93. We agree with Mr. Vassos that the language in ss.16(4)(1) is very clear indeed. Having regard to Mr. Vassos' submissions on this point, the Application in 0442-93 is dismissed.

2The issue before us becomes even narrower: do the Individual Teachers have standing to participate in File 0385-92, which encompasses the Board's objections to both the 1992 and 1993 Orders? Mr. Vassos argued that they have standing to intervene as parties in a proceeding initiated by the bargaining agent or employer with respect to an ordered pay equity plan. Mr. Filion for the Board supported Mr. Vassos' submission. Ms. Shilton for the Branch Affiliates argued that the Individual Teachers have no standingto participateas a party in File 0385-92, and thattheyshould notbegrantednon-partyintervenor status.

C. Relationship of the Board, the Branch Affiliates and the Individual Teachers

1 As noted, the Board is the employer of elementary school teachers in the York Region.

7. Pursuant to theSchool Board and Teachers Collective Negotiation Act, R.S.O. 1990, c. S.2, ("the SBTCNA") teachers in Ontario are statutorily required to belong to one of five affiliates of the Ontario Teacher's Federation. Branch affiliates are charged with representing all the teachers employed by a particular board who are members of an affiliate (s. 5). The Branch Affiliates and the Board negotiate written collective agreements which are binding on the Board, the Branch Affiliates and the elementary school teachers employed by the Board (s. 58). The collective agreement between the Board and the BranchAffiliateseffective September1,1991 to August31,1993containsthefollowingrecognitionclause:

The Board recognizes the Branch Affiliates as the sole and exclusive bargaining agent for the teachers ....

8. The Regulations to the Education Act, R.S.O. 1990, c. E.2, prescribe a Form of Contract to be enteredintobetweenaschoolboardandeachteacherinitsemploy. The contents of this Form of Contract are slight. Essentially, it involves a promise by the teacher to do his/her job, in return for which the employing school board agrees to pay the teacher the amount set out in the contract, which amount is determined in accordance with the governing collective agreement and is subject to change. In the event ofanyconflict between the terms of the FormofContractand the collective agreement,the lattergoverns, pursuant to s. 54 of the SBTCNA:

(1) An agreement between aboardand a branchaffiliate shall be deemed to form part of the contract of employment between the board and eachteacherwho is a member of the branch affiliate.

(2) Where a conflict appears between a provision of any other part of a contract of employment and a provision of the agreement referred to in subsection (1), the provision of the agreement prevails, but no agreement shall conflict with the form of contract prescribed by the regulations under the Education Act.

2 The Individual Teachers number fifty-two. They are all members of the Branch Affiliates.

D. The Individual Teachers’ Objections to the Orders

1 There are a number of substantive issues before the Tribunal in File 0385-92. The one about which the Individual Teachers are particularly concerned, and which they assert entitles them to party status, relates to the number of job classes for elementary school teachers.

2 In the 1992 Order, the Review Officer found that the elementary school teachers in the employ of theBoardcomprisedsevenjobclasses. This was the same conclusion the Tribunal had previously reached in Wentworth County Board of Education (1990), 1 P.E.R. 132, ("Wentworth") in respect of the elementary school teachers employed by that board.

3As was the case in Wentworth, whatdeterminesthe compensationpayable to anyelementaryschool teacher employed by the Board is where she fits on a grid that is negotiated by the Board and Branch Affiliatesandincludedinthecollectiveagreement. The two variables that determine placement on the grid are years of teaching experienceandformalacademicqualifications. For the purposes of this preliminary argument on standing, Mr. Vassos urged us to accept that certain passages from Wentworth accurately describe the gridinplaceforteachersattheBoard. Neither the Board nor the Branch Affiliates objected to our doing so for this limited purpose, and notwithstanding we heard no evidence and are making no findings of fact, we are prepared to accept for the purposes of the standing argument that the following statements from Wentworth are true:

. . . teachers {are divided} into seven categories: D, C, B, A1, A2, A3, and A4 based on their educational qualifications .... In general.... teachersinCategoriesD, C, and Bdo not have university degrees; those in categories A1 through A4 do. Teachers are encouraged to move from one category to another, by acquiring additional approved university or Ministry of Education courses...

Elementaryteachersare paid onatwo-dimensionalsalarygrid based onqualifications and years of teaching experience. One axis represents the seven . . . categories. A teacher moves across the salary grid when she or he acquires additional approved university or Ministry courses in the required order and combination, and thus moves from one qualification category to another. the other axis represents years of teaching experience. A teacher moves down the grid after completing each year of teaching to a set maximum .... The grid is not a rectangle; that is, there are fewer steps in the lower categories {e.g.. D, C, or B} thaninthe higher categories. The Tribunal heard evidence from the Boards' and from the Federations' witnesses that the grid was negotiated in this fashion to encourageteachersto acquireadditionaleducationalcoursesso thattheywould move into a higher category with additional steps for experience.

13. The effect of the grid can be summed up simply: an elementary school teacher without a university degree("a non-degreeteacher") ispaid lessthananelementary teacher with auniversitydegree("a degree teacher") where both have the same number of years of teaching experience; and, a non-degree teacher's entitlement to salary increases based on years of teaching experience ceases earlier than does a degree teacher's. In Wentworth, amajorityof the Tribunal found that each of the seven categories, D, C, B, Al,

A2, A3, and A4 constituted a separate job class. The 1992 and 1993 Orders reached the same conclusion.

2 The Individual Teachers are all degree teachers. Theyclaimthatthe effect of the Review Officer's determinationthatthereare seven job classes for elementaryschoolteacherswillbeto eliminatethe salary advantagetheyenjoyvis-à-vissimilarly placed non-degree teachers. Mr. Vassos introducedadocument he had prepared setting out what he says the salary figuresonthe grid will look like if the 1992 and 1993 Orderswithrespecttojobclasswereimplemented. Counsel for the Branch Affiliates did not object to our marking the document as anexhibit,but she made it clear that she was in no way conceding the accuracy of its contents. Without further regard to the document and its accuracy or inaccuracy, we are prepared simply to assume for the purposes of this preliminary argument on standing that Mr. Vassos is correct in hisassertion that a necessary consequence of finding that elementary school teachers comprisesevenjob classes will be some disruption to the grid, and in particular,thatinsome cases the salarypremiumdegree teachers enjoy relative to their non-degree counterparts may change.

E. The Standing Issue - Party Status

1 Subsection 32(l) of Act enumerates who are parties to a proceeding before the Tribunal. The enumerated parties are the employer; the objector/complainant; and the bargaining agent (where the plan relates to a bargaining unit, or the employees to whom the plan relates (if the plan does not relate to a bargaining unit). The plan in question here obviously relates to a bargaining unit. Consequently, the Individual Employees are not an enumerated party under ss.32(1).

2 Persons who are not enumerated parties under ss.32(l) have frequently sought standing to participate in proceedings before the Tribunal. Decisions on this matter include Haldimand-Norfolk(No.5) (1990), 1 P.E.R. 77; Women's College Hospital (No. I) (1990), 1 P.E.R. 53; Wentworth County Board of Education (1990), 1 P.E.R. 132; and St. Michael's Hospital (No. 1) (1991), 2 P.E.R. 183. One of the mostsignificant issuesinthosepreviousdecisions waswhetherthe ss.32(l) listwasexhaustive ofwho could be a partyor, alternatively, whether non-enumerated persons who sought to participate could be permitted to do so under other sections of the Act or the Statutory Powers Procedure Act ("the SPPA"). Even the mostliberalapproachto interventionrequiredata minimumthatthe person seeking standing show that he or she was "entitled by law" to be a party.

3 The debate about the relationship between the SPPA and ss.32(1) of the Act is now of historical interest only. Subsection 32(1) was recently amended by the Pay Equity Amendment Act, 1993, S.O. 1993, c. 4. The amendment adds the following to the list of enumerated parties: "any other persons entitled by law to be parties". The Application in 0385-92 was made prior to the amendment of ss.32(1), but the Individual Teachers' Response was filed subsequent to its amendment. We heard no submissions about whetherthe determinationofthis standingissue isgoverned by the pre- or post-amendment ss.32(1) , but in our view it makes no difference because the Individual Teachers are not "entitled atlaw"tobe party to these proceedings.

18. Mr. Vassos says that the Individual Teachers are entitled by law to be party to these proceedings because they have a direct legal interest in the outcome. That interest is said toflowfromthefactthatthe Branch Affiliates take the position that the elementary school teachers employed by the Board comprise

seven job classes. IfthatpositionprevailswiththeTribunal,Mr.Vassossubmitsthatdisruptionofthegrid will occur. Mr. Vassos characterizes disruption of the grid as disruption to the Individual Teachers' employment contract, and to their contractual right as degree teachers to the maintenance of their relative salary advantage over non-degree teachers. In analogous situations where the interest of individual employees is adverse to the position taken by their bargaining agent in arbitration or labour board proceedings and the result ofaccedingto the bargainingagent'spositionwillbe deprivationofacontractual or propertyright of the individualemployee,courtsand arbitratorshave consistentlyheld thatthe individual employee is entitled to be a party to the proceeding. Mr. Vassos referred to numerous cases in support of this proposition and urged the Tribunal to apply them in the circumstances of this case to find that the Individual Teachers are entitled by law to be party to File 0385-92.

4The cases Mr. Vassos cited in support of the Individual Teachers entitlement to standing involved disputes about collective agreements. In each case, someone who was not a party to the collective agreement sought to be a party to the proceedings dealing with it. The people seeking standing included employeescovered bythe collective agreement; other bargaining agents whosemembersalsoworked for the employer under a different collective agreement;or otheremployers.Inmost of the situations in which those persons were granted party standing, it was because the continued application to them of an employment contract was at risk. In Re Hoogendoorn and Greening Metal Products & Screening Equipment Co. et al (1967), 1967 CanLII 20 (SCC), 65 D.L.R. (2nd) 641 (S.C.C.), and L.R. Appleton et al v. Eastern Provincial Airways et al, 1983 CanLII 5021 (FCA), [1984] 1 F.C. 367 (F.C.A.), the continuedemploymentofindividualswasput at risk by the union's position, and in Re Bradley et al and Ottawa Professional Fire Fighters Association et al (1967), 1967 CanLII 160 (ON CA), 63 D.L.R. (2d) 376 (Ont. C.A.), it was the individual employee's continued employment in a particular position that was at risk. In C.U.P.E. v. Canadian Broadcasting Corp. (1990), 1990 CanLII 8078 (ON CA), 70 D.L.R. (4th) 175 (Ont. C.A.), appeal dismissed 1992 CanLII 8644 (ON CA), 91 D.L.R. (4th) 767 (S.C.C.), the opportunities for continued employment of one union's members by an employer were put at risk by the positiontaken by another unioninadisputewiththatsameemployer. In both Fanshawe College (1991), 1991 CanLII 13424 (ON LA), 19 L.A.C. (4th) 162 (Brent), Calgary Television Ltd. (1991), 1991 CanLII 13377 (CA LA), 20 L.A.C. (4th) 374 (Canada, A. Ponak) a collective agreement employer contracted out certain functions to another company. The issue was whether the persons performing those functions were employed by the collective agreement employer (as the union contended in its grievance) or the contracted-to company (as it contended), and the company was held to be entitled to be a party to the grievance proceedings.

5The situation of the Individual Teachers is not analogous to the situation of the persons found to be entitled to participate in the above cases. The proposition that emergesfromthosecasesis the following: if a person is a party to or the beneficiary of an employment contract whose very existence is threatened by arbitration or labour board proceedings relating to a collective agreement, that person is entitled to participate in those proceedings notwithstanding he, she or it is not party to the collective agreement. The very existence of the Individual Teachers employment contract is not threatened in any way by these proceedings, no matter how we dispose of the job class issue. These cases do not support their bid for standing.

21. One of the cases cited by Mr. Vassos was Okanagan Helicopters Ltd. v. Canadian Helicopter Pilots' Association, 1985 CanLII 5567 (FCA), [1986] 2 F.C. 56 (F.C.A.). In Okanagan Helicopters, persons not party to the collective agreement, employees in the bargaining unit, were entitled to participate in labour board proceedings relating to the collective agreement. Pursuant to the terms of the collective agreement

governing their employment, these individuals had all elected not to pay union dues. Legislation was enactedthatenabledbargainingagentsto insist upon union dues being deducted fromeachmemberofthe bargaining unit. The employer refused to make the mandatory deductions when the union requested it to dosoandtheunioncommencedanunfairlabourpracticeproceedingagainsttheemployer. The basis upon which the individual employees were granted standing was that they had a "patrimonial" interest in not having dues deducted. At best the case stands for the proposition that where the remuneration payable to a third party beneficiary to an employment contract may be reduced if the bargaining agent's position prevails, that third party beneficiary is entitled to participate in the proceedings. At worst, the case is wrongly decided. We incline to the latter view, but it is not necessary for us to make a determination on it. The actual remuneration received by the Individual Teachers will not be reduced as a result of our determinationinthese proceedings. Okanagan Helicopters does not support the Individual Teachers' bid for standing.

6We were not referred to any case in which one person, who was going to receive everything to which he or she was entitled pursuant to a contract of employment regardless of the outcome of proceedings,wasneverthelessentitled to participate as a partyinthoseproceedings merelybecausethere was a possibility that another person's entitlement under the contractofemployment might be affected by the outcome.

7Theunderlyingpremiseofthe Hoogendoorn lineofcases isexclusivityofbargaining rights. In those cases, because the union's assertion of its exclusive right to administer a collective agreement imperils in some way the property or contractual rights of an individual employee in the bargaining unit, the employee was entitled to standing. In addition to relying on these cases, Mr. Vassos also relied heavily on the IndividualTeachersFormofContractas "enhancing" their entitlement to standing. This argument focuses on eachteacher'sabilitytonegotiateaFormof Contract which is separate and distinct from the collective agreement. We have some difficulty in understanding how this situation "enhances" whatever right the Individual Teachers have under the Hoogendoorn cases. Rather, it seems to us to be incompatible with the underlying premise of Hoogendoorn, which is based on the employee's lack of individual contracting ability. In any event, what Mr. Vassos urges us to find is that even if we are not convinced that Hoogendoorn et al alone entitle the Individual Teachers to participate, the added fact that there are individual contracts of employment should entitle them to do so. With respect, that would seem to us a case of the whole being much greater than the sum of its parts.

8The Act is premised on the notion that systemic gender discrimination in compensation exists, and that where it is found to exist, it must be redressed. The statutorily mandated redressing of pay inequities will necessarily result in disruptions to some existing salary relativities. Where those salary relativities are expressed in the form ofagrid,as here,thatgrid may be subject to disruption. Those consequences must be assumed to have been in the contemplation of the Legislature when the Act was passed. Yet no individual employee affected by those disruptions was given a statutorily specified role to play in the development of a pay equity plan. For Part II employers such as this one, whose employees are representedbyabargainingagent,a payequityplanwasto be preparedasa result ofnegotiations between the bargaining agent and the employer. Individual employees who are not represented by a bargaining agent alsohave no statutorilyspecifiedrole inthe preparation of the pay equity plan that will applyto them -- the employer alone canprepareandpostit. The issues in File 0385-92 relate to the development of a pay equity plan. The Act does not specify a role for individual employees in that process.

9If we accept Mr. Vassos' submission, the situation we are left with is the following: unless the case is a Hoogendoorn one, individual employees represented by a bargaining agent are not prescribed any statutory role in the preparation of a pay equity plan. Neither are individual employees who are unrepresented by a bargaining agent. Yet Mr. Vassos submits that the Individual Teachers, because they are in what he calls a "hybrid" situation, represented by both a bargaining agent as well as being able to enterintoindividualcontracts of employment, are entitled by law to be partiesto aproceedingthatrelates to the preparation of the pay equity plan. We do not find this argument to be logically compelling.

F. The Standing Issue - Status as a Non-Party Intervenor

26. Mr. Vassos argued that even if the Individual Teachers were not entitled to participate as a party in these proceedings, we should grant them non-party intervenor status. He conceded that their claim to such status was a weak one, and we agree. Non-party intervenor status is granted at the discretion of the Tribunal where it feels thatthe participationofthe non-partyintervenorwillbe ofassistanceto the Tribunal inreachingitsdecision. We do not feel that the participation of the Individual Teachers will be of assistance to us. The Individual Teachers do not offer the Tribunal a distinct point of view or expert knowledge on the issues before us. They do not represent any general public interest, or indeed any interest that cannot adequately be presented by someone else. In fact, their position -- opposition to the Review Officer's findingthatthe elementaryclassroomteachersinthe Board'semploycomprisesevenjob classes -- will be presented by someone else, the Board.